2015-0174, The State of New Hampshire v. Christopher Gay

witness to testify regarding certain footwear impression s. We affirm. evidence of an “alternative perpetrator” and in allowing the State’s expert seizure. He further argues that the Trial Court (Tucker, J.) erred in excluding suppress evidence obtained from an allegedly unconstitutional search and He argues that the Superior Court (Brown, J.) erred in denying his motion to robbery. See RSA 630:1 - b, I(b) (20 07); RSA 629:3 (2007); RSA 636:1 (2007). following a jury trial, for second degree murder and conspiracy to commit CONBOY, J. The defendant, Christopher Gay, appeals his convictions,

and orally), for the defendant. Law Offices of Kelly E. Dowd, PLLC, o f Keene (Kelly E. Dowd, on the brief

and orally), for the State. Joseph A. Foster, attorney general (Sean P. Gill, attorney, on the brief

No. 2015 - 0174 Strafford

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh. us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

provided him with a descr iption of the man he had earlier witnessed enter the from a neighboring town, who had arrived on the scene, to patrol the area and secured the egresses from the apartment building. Ferguson directed an officer T he other officers on the scene began to render assistance to Stewart and

DeGroat was on her cellular telephone with a 911 operator. building. Stewart had puncture wounds to his torso and was bleeding. DeGroat, both of whom he knew to be residents of separate apartments in the building. Ferguson recogni zed the man as Stewart and the woman as Amanda the bottom step of the apartment building and a woman coming out of the exiting the police department, Ferguson saw a man lying on the ground near Farmington police officer ran out of the building to render assistance. Upon stabbing victim at 11 Wor ster Street. Ferguson, Wheeler, and anot her Ambulance medical tone sounded. The ensuing call reported that there w as a had returned to the police department, the Farmington Fire Department and A t 1 p. 2 2:02 a.m. on January 22, a few minutes after Ferguson and Wheeler

located at 11 Wor ster Street. the rear side of the police department. The man enter ed an apartment building when Ferguson observed a ma n walking on Wor ster Street, which runs along of the Farmington Police Department were driving to the police department before midnight o n January p. 2 21, 2012, Sergeant Ferguson and Officer Wheeler defendant’s motion to suppress or are otherwise found in the record. Shortly The following facts are taken from the trial court’s order denying the

I. Suppression Motion

arguments in turn. defendant appeals these rulings. We address each of the defendant’s crime scene could have been made by a particular type of footwear. The State’ s expert witness to testify that certain footwear impressions found at the the defendant that a third person was gu i lty of the crimes. Finally, it allowed a Next, the trial court granted the State’s motion to exclude evidence proffered by his subsequent detention by two police officers in the driveway of his residence. result of a police officer’s entry onto his property with a trained police dog and defendant. First, it denied his motion to suppress evidence obtained as a Prior to t rial, the court made a number of rulings unfavorable to the

furtherance of the conspiracy. crime” and that he committed one or more of certain enumerated overt acts in [he] agreed with Cory Bennett, to commit or cause the commission of such which alleged that, “with the purpose that the crime of robbery be committed, murder. He was also charged with one count of conspiracy to commit robbery, two alternative counts of first degree murder and one count of second degree and stabbing of Ryan Stewart in Farmington. The defendant was charged with The defendant’s convictions aro se out of the January p. 2 21, 2012 robbery p. 3 3

to 15 yards away from the apartment building on Worster Street in an area of the defendant. Ferguson directed Mackenzie to start the canine track about 10 Mae, Ferguson told him that he had a suspect, but did not tell him that it was When Mackenzie arrived with his dog, a female bloodhound named Daisy

department. defendant lived on Bunker Street, ab out a five - minute walk from the police consistent with DeGroat’s description. Fer guson testified that he knew the defendant led him to believe that the defendant’s manner of speaking was defendant is Caucasian, Ferguson testified that prior i nteractions with the manner of speaking, Ferguson suspected the defendant. Although the apartment building and DeGroat’s description of the unknown individual’s Based upon the appearance of the man he witnessed ent er the

DeGroat telephoned 911. then knocked on DeGroat’s door and asked her for help. At that point, argument, she heard two sets of footsteps running down the stairs. Stewart slang - type verbiage.” DeGroat also said that shortly after hearing the voice, she described the individual as speaking with “African - American. . . voices as Stewart ’s. Although she could not identify the other individual’s argument in Stewart’s apartment and she i dentified one of the individual s ’ Ferguson that DeGroat told him that s he had heard what sounded like an from Wheeler that Stewart had been pronounced dead. Wheeler also informed conduct a canine track. While waiting for the canine unit, Ferguson learned Roche ster Police Department respond to the scene with his police dog to At 12:29 a.m., Ferguson requested that Officer Mackenzie of the

at various street intersections near the scene. several officers back so as not to taint the crime scene. He then posted officers Ferguson placed c ardboard boxes over some of the footprints and pulled footprints in the snow pointing north, some of which contained blood. officer to the northern side of 11 Worster Street where he observed several Street. After viewing the surveillance videos, Ferguson went with another two individuals simultaneously left the building and ran north on Worster entered the apartment building and, approximately seven minutes after that, The video showed that, approximately fifteen seconds later, another individual image of the individual Ferguson h ad witnessed enter the apartment building. corner of the police department facing the apartment building, captured an the outside of the police department. One of the cameras, positioned at the Ferguson then reviewed surveillance videos from cameras positioned on

the bedroom was ajar and had a bloody handprint on it. struggle in the living room. He also noticed that a safe across from the bed in Stewart’s apartment had “blood everywhere” and that there were signs of a Stewart’s apartment. Wheeler testified at the suppression hearing that apartment building. Ferguson instructed Wheeler and another officer to secure p. 4 4

but the defendant called Ferguson a derogatory name and went inside. (Quotation omitted.) Ferguson tried to engage the defendant in conversation, wanted to talk with him, they should “come up [to the residence] like men.” came out of the back door of the residence and told the officers that, if they windows. Ferguson and Wheeler spoke for a moment, and then the defendant to be four to six people moving around inside the residence and looking out the parked his cruiser near the residence. Ferguson could see what he estimated any information about Stewart’s death. Arriving at approximately 1:33 a.m., he Ferguson decided to attempt contact with the defendant to see if he had

the individual ignored Wheeler’s attempts and went b ack into the residence. the individual with his flashlight and attempted to make contact with him, but leave by way of the back door and go into the backyard. Wheeler illuminated residence. Soon after Whee ler arrived at the residence, he observed a man while the other officer was posted in a driveway facing the back door of the the residence. Wheeler was posted on Bunker Street in front of the residence, Ferguson assigned Wheeler and another officer to conduct su rveillance of

informed dispatch that they were headed back to the police department. Ferguson and Mackenzie then left the property, and, at 1:15 a.m., Ferguson location was where the defendant, whom he originally suspected, resided. Mae had lost the scent. At this point, Ferguson told Mackenzie that this scent again, but when she was unsuccessful, he informed Ferguson that Daisy scent. Mackenzie allowed Daisy Mae to explore the area to try to pick up the the back of the porch and became “frantic,” indicating that she had lost the stopped her. Mackenzie testified that, at this point, Daisy Mae went around to house. She then attempted to climb onto the back porch, but M a ckenzie the base of the residence near the driveway and continued to the back of the Daisy Mae proceeded onto the property at 29 Bunker Street. She sniffed

debris on it, appeared to have recently been discarded. ounce Budweiser can with a red tab, which, because it had no snow, salt or the officers to 29 Bunker Street. On the way, the officers found an empty 12 Mae indicated that she wanted to continue back onto the street. She then led that a party was going on. After sniffing around the base of the home, Daisy scent, she led MacKenzie to the driveway of a home nearby, where it appeared Mackenzie were conducting the canine track. Once Daisy Mae picked up the At approximately 1:06 a.m., Ferguson informed dispatch that he and

explained that skin rafts can easily be dispersed by the wind. rafts tend to collect in “hard places” like driveway s or the base of house s. He conditions, settle to the ground within 1 p. 5 5 to 20 minutes. He stated that skin skin cells” that are discarded by people and, depending upon the surrounding she trails the scent from “skin rafts.” He explain ed that skin rafts are “dead testified that Daisy Mae is what is referred to as a “trailing dog,” meaning that snow that appeared to be disturbed and contained footprints. Mackenzie 5

further contact with the defendant. Wheeler remained at the residence until approximately 4:00 a.m., but made no a.m. Ferguson asked Wheeler to continue surveillance on the residence. bump” to the officers, and the officers left the residence at approximately 2:00 asking the officers what music they liked. The defendant then gave a “fist speaking with t he defendant’s girlfriend, the defendant began playing music, but that she had been “up and down the stairs.” Whi le the officers were She told the officers that she believed the defendant had been home all nig ht, porch. Shortly thereafter, the defendant’s girlfriend appeared in the doorway. went in to the residence through the back door, leaving the officers on the back and his girlfriend. Ferguson testified that the defendant seemed reluctant, but Ferg uson asked the defendant if the officers could speak with his mother

residence. suspicious because he had earlier observed more than three people in the who was sick, and his girlfriend, who was sleeping. Ferg uson found this told the officers that the only people in the house at that time were his mother, n ot typical from [Wheeler’s] past dealings with [the defendant].” The defendant some sort of high. He was very animated. He was very in your face which was did not appear nervous. Wheeler testified that the defendant “seemed to be on hanging out.” Ferguson stated that t he defendant appeared intoxicated, but officers that p eople had been coming and going and that they were “just The defendant told the officers that he was home all night. He told the

be a fresh abrasion on the knuckle of the defendant’s right index finger. to the one found during the canine track. Ferguson also saw what appeared to not iced that the defendant was holding a Budweiser can with a red tab, similar to show them that he did not have any weapons in his waistband. The officers wea pons charge, asked the defendant to lift up his sweatshirt and turn around t he officers, who knew the defendant had been previously arrested on a used his flashlight to illuminate his path while walking. As they approached, his gun, he would have holstered it prior to meeting the defendant. Ferguson could not recall whether Ferguson did. Ferguson sta ted that if he had drawn driveway. Wheeler testified that he did not have his gun drawn, but that he After a short exchange, the defendant agreed to meet the officers in the

po licy. No such report was introduced at the hearing. had, he would have written a report in accordance with police department testified that, although he was not positive whether he had his gun drawn, if he but that he believed Ferguson had his gun drawn, down by his leg. Ferguson of the police cruisers. Wheeler testified that he did not have his gun drawn, defendant. At this point, Wheeler and Ferguson were taking cover behind one the officers again. Wheeler stated that he attempted to be friendly to the Shortly thereafter, the de fendant returned to the back porch and engaged p. 6 6

the trial court’s legal conclusions, however, is de novo. Id. clearly erroneous. State v. Rodriguez, 157 N.H. 100, 103 (2008). Our review of the t rial court’s factual findings unless they lack support in the record or are When reviewing a trial court’s ruling on a motion to suppress, we accept

guidance only. State v. Ball, 124 N.H. 22 p. 6 6, 231 - 33 (1983). defendant’s claims under the State Constitution and cite federal opinions for N.H. CONST. pt. I, art. 19; U.S. C ONST. amend. IV. We first address the constitutional rights to be free from unreasonable searches and seizures. See subsequent detention in his driveway violated his state and federal motion to suppress because the warrantless search of his property and his On appeal, the defendant argues that the trial court erred in denying his

an investigatory stop.” “[a]ssuming a seizure occurred[,] . . . sufficient reasonable suspicion existed for officers unlawfully seized him in his driveway, the court found that, the [defendant’s] property.” With regard to the defendant’s claim that the for “the limited police intrusion of allowing [Daisy Mae] to sniff the outside of suspect did not escape.” Th us, the court concluded that an exigency existed “[t]he dog trail . . . was the police’s best mechan ism to ensure a homicide footprints found outside the apartment building, the court determined that “were aware that this was a homicide investigation,” and there were bloody outpaces the police’s abili ty to write and obtain a warrant.” Because the police police to utilize canine trails as the natural dispersion of the skin rafts warrant in order [to] enter someone’s property, it would likely be futile for propert y. The court further reasoned that, if the police were “required to get a believe that the scent trail tracked by Daisy Mae led to the defendant’s the search. Specifically, the court determined that there was probable cause to property with Daisy Mae constituted a search, exigent circumstances justified concluded that, even assuming Mackenzie’s entry onto the defendant’s Following a hearing, the trial court denied the motion. The trial court

approached him outside his residence. further argued that he was unlawfully seized when Ferguson and Wheeler leading to his residence constituted an unlawful warrantless search. He detention of him in his driveway. He maintained that Daisy Mae’s track result of Mackenzie ’s entry onto his property with Daisy Mae and the officer s ’ Prior to trial, the defendant moved to suppress all evidence obtained as a

execution of the search warrants. the defendant was arrested based upon evidence found as a result of the The warrants were subsequently issued and executed. Later that same day, include its curtilage, as well as a warrant to search the defendant’s person. for a warrant to search the defendant’s residence, which he later amended to Ferguson returned to the police department and drafted an application p. 7 7

the base of house s. He stated that skin rafts can easily be dispersed by the skin rafts and that they tend to collect on “hard places” such as driveway s or a homicide. Mackenzie testified that Daisy Mae was trailing the scent from that Stewart had died from his wounds and, t hus, that they were investigating the time Ferguso n and Mackenzie conducted the canine track, they were aware circumstances existed justifying the entry onto the defendant’s property. At Here, the record supports the trial co urt’s finding that exigent

triggered by that exigency.” Id. (quotation omitted). does not, by itself, control the legality of a subsequent warrantless search at the time the decision was made to forego or postpone obtaining a warrant (1991). We stress, however, that the extent to which “exigency was fore seeable relied upon by the State was foreseeable. State v. Santana, 133 N.H. p. 7 798, 806 totality of the circumstances, we consider the degree to which the exigency other persons inside or outside the dwelling. Id. at 801. When reviewing the need to prevent a suspect’s escape, and the risk of danger to the police or to evidence, the gravity of the offense, the likelihood the suspect is armed, the warrantless entry, should consider the danger of imminent destruction of Robinson, 158 N.H. 792, 798 (2009). Police, as well as courts reviewing a of the officers’ conduct prior to entry, and no single factor controls. State v. Our totality review includes an examination of the overall reasonableness

MacDonald, 129 N.H. 13, 21 (1986). the trial court, which we will not disturb unless clearly erroneous, State v. Theodosopoulos, 119 N.H. 5 p. 7 73, 580 (1979), and is largely a question of fact for warrantless search depends upon the totality of the circumstances, State v. and citation omitted). Whether a situation is sufficiently urgent to permit a safety or likelihood that evidence will be destroyed.” Id. at 103 - 04 (quotation s warrant would create a substantial threat of imminent danger to life or public immediate official action and a risk that the delay caused by obtaining a search “Exigent circumstances exist where the police face a compelling need for

to whether exigent circumstanc es existed. property. We, therefore, need not address that element and turn our attention finding that there was probable cause to believe that the scent trail led to his circumstan ces. See id. The defendant does not challenge the trial court’s circumstances” exception, which has two elements: probable cause and exigent an entry falls within one of these exceptions. Id. At issue here is the “exigent State bears the burden of proving by a preponderance of the evidence that such confines of a judicially crafted exception to the warrant requirement. Id. The entries are per se unreasonable and illegal unless they fall within the narrow requirement. Under Part I, Article 19 of our State Constitution, warrantless was justified under the exigent circumstances exception to the w arrant The trial court determined that, even assuming a search occurred, the search o nto his property with Daisy Mae constituted a n unlawful warrantless search. We begin by addressing the defenda nt’s argument that Mackenzie’s entry p. 8 8

obtain a warrant prior to commencing the canine track because the delay track the skin rafts prior to their dispersal. The officers did not have time to situation. Rather, the exigency arose as a result of the murder and the need to Here, the exigency was not the result of an expected emergency

been made into the apartment. Id.; see also id. at p. 8 802. detective decided to wait until the drug buyer had been arrested and entry had the affidavit. Id. However, instead of seeking the warrant at that time, the search warr ant application and completed all but the last three paragraphs of warrant. Id. at 807. One day before the entry, the detective prepared the was foreseeable at a point in time when the police could have obtained a search the expected result of the detective’s planned buy. Id. Further, the exigency apartment. Id. at 806. Thus, the exigency was not just foreseeable but was buy, an emergency situation would likely arise requiring the police to enter the case, the detective understood from the beginning that, under his planned drug the apartment where the defendant was arrested. Id. at 799 - 800, 807. In that upon the exigent circumstances exception to justify their warrantless entry into In Santana, for instance, we concluded that the police could not rely

the degree to which the exigency itself wa s foreseeable. See id. at p. 8 806. the circumstances. See id. at 804. When we do so, we consider as one factor the search. See Santana, 133 N.H. at 806. Rather, we examine the totality of defendant’s residence, for eseeability does not, by itself, control the legality of defendant may have led him to foresee that the canine track would end at the defendant’s] residence.” Assuming that Ferguson’s initial suspicion of the foresee that the search would end in the invasion of the curtilage of [the was involved in the crimes prior to the use of Daisy Mae, he “could reasonabl y The defendant argues that, because Ferguson suspected the defendant

left the property. her and, as soon as it became apparent that she had lost the scent, the officers When Daisy Mae attempted to climb onto the back porch, Mackenzie stopped search lends credence to the position that the officer’s search was reasonable”). minimal. See MacDonald, 129 N.H. at 21 - 22 (noting that “limited nature of the Moreover, the physical intrusion onto the defendant’s property was

possession would be destroyed by burning). obtaining a search warrant created likelihood that evidence of marijuana justifying wa rrantless entry by police into h otel room because delay in (holding that odor of burning marijuana gave rise to exigent circumstances entrance onto the defendant’s property. See Rodriguez, 157 N.H. at 107 the officers to obtain a warrant presented a situation requiring an emergency left by the suspe ct would dis perse prior to the time that it would have taken susceptible of being dispersed by the wind.” The possibility that the scent trail were “at the mercy of the surrounding weather conditions and [were] wind. As th e trial court found, the skin rafts the officers were searching for p. 9 9

the functional equivalent of arrest. Because the defendant relies solely upon W e concl ude, as a matter of law, that the defendant was not subject to

probable cause to take [him] into custody at that time.” that, although “there may have been reasonable suspicion, there was not is, the functional equivalent of arrest — requiring probable cause. He contends see Terry v. Ohio, 3 p. 9 92 U.S. 1, 20 - 27 (1968), but that he was in custody — that essence, that his detention in his driveway was not a mere investigative stop, suspicion’ standard” rather than the probable cause standard. He argues, in defendant maintains that the trial court “erred in utilizing the ‘reasonable sufficient reasonable suspicion existed for an investigatory stop.” The spoke with the defendant in his driveway, but nonetheless found “that driveway. The trial court assumed that a “seizure occurred” when the officers denying his motion to suppress evidence obtained from his detent ion in his We next turn to the defendant’s argument that the trial court erred in

same result under the Federal Constitution. N. H. at 110; Illinois v. McArthur, 531 U.S. 326, 330 - 31 (2001), we reach the does the Federal Constitution under these circumstances, see Rodriguez, 157 Because our State Constitution provides at least as much protection as

situation. entry onto the defendant’s property was justified by the exigencies of the Under these circumstances, we agree with the trial court th at the warrantless investigation before the evidence leading them to the suspect dissipated. attempt ed to ascertain the whereabouts of a possible suspect in a murder situation.” Theodosopoulos, 1 1 p. 9 9 N.H. at 582. Here, t he officers methodical ly deployed their forces differently in response to a confusing emergency after - the - fact evaluation of whether, as a tactical matter, the police could have The cons titutionality of a given search, however, “does not turn on this court’s about the perimeter of the property, without actually invading the curtilage.” determine whether the dog could pick up the trail elsewhere by taking the dog his residence, they “could have elected, instead of invading the curtilage, to The defendant further maintains that, at the time the officers arrived at

requiring an emergency entrance”). course of action which they [knew] at the outset [would] present a situation caus e, time to obtain a warrant, and time for reflection,” but chose to “pursue a exigency to justify their [warrantless] entry” where police had “ample probable 133 N.H. at 807 (concluding that police may not rely upon an “expected obtained a search warrant before conducting the canine track. Cf. Santana, unreasonable or that there was sufficient oppo rtunity for them to have demonstrates that the officers’ behavior prior to the canine track was be dispersed. See Rodriguez, 157 N.H. at p. 10 107. Nothing in the record inherent i n obtaining a warrant created a likelihood that the skin rafts would 10

defendant about where he had been during the preceding hours and who was investigating a murder that had occurred several hours earlier, spoke to the according to Ferguson, did not appear nervous. The officers, who were Moreover, d uring the conversation, the defendant held his beer can and,

been holstered when he and Wheeler met the defendant. that he used his gun in a show of for ce and he stated that his gun would have that Ferguson may have had his gun out at some point, there is no evidence defendant was ne ither confined, no r restrained). Although there was testimony at 63 (concludi ng that investigative stop did not rise to level of arrest where confined or physically restrained during the questioning. See Wong, 138 N.H. to demonstrate that he did not have any weapons, the defendant was not immediate vicinity). Although the officers asked the defendant to lift his shirt purposes of Miranda where only two officers spoke to him and we re in his Turmel, 150 N.H. at 384 - 85 (determining that defendant not in custody for went back inside. Further, o nly two officers spoke to the defendant. Cf. indeed, the defendant initially came out of his residence on his own and then driveway. At no time did the officers order the defendant to speak with them; functional equivalent of arrest. The defendant agreed to meet the officers in his matter of law, the defendant’s assumed seizure did not rise to the level of the Here, taking the facts as found by the trial court, we conclude that, as a

of the stop. See Turmel, 150 N.H. at 383; Wong, 138 N.H. at 63. temporary, and must last no longer than is necessary to effectuate the purpose stop, however, must be carefully tailored to its underlying justification, must be State v. Dalton, 165 N.H. 263, 265 (2013) (quotation omitted). The scope of the per son stopped has been, is, or is about to be, engaged in criminal activity.” taken together with rational inferences from those facts — that the particular police must have “reasonable suspicion — based on specific, articulable facts omitted). For such a detention to be lawful under the State Constitution, the commission of a crime,” State v. Reid, 135 N.H. 376, 380 (1992) (quotation grounds that do not amount to probable cause to arrest hi m for the “t he police may temporarily detain a suspect for investigatory purposes, on While a warrantless arrest is unlawful if not supported by probable cause, id., circumstances of a particular case.” Id. (quotation and brackets omitted). determination of when an arrest occurs depends upon the facts and necessarily sig nify that the seizure is an arrest. Id. (quotation omitted). “The loss of freedom to leave signals that a seizure has occurred,” it does not (1993) (quotation and ellipsis omitted). Although “[a] reasonable perception of every seizure rises to the level of an arrest.” State v. Wong, 138 N.H. 56, 62 that he was not free to leave. State v. Turmel, 150 N.H. 377, 383 (2003). “Not surrounding an investigatory stop, a reasonable person would have believed A suspect is considered “seized” if, in view of all the circumstances

aid our analysis. See State v. Grey, 148 N.H. 666, 668 (2002). the State Constitution, we base our decision on it, using federal cases only to p. 11 11

that there was evidence that Bennett had “acknowledged to two separate that Bennett had told them Smith was involved in the crimes. He maintained The defendant also pointed to statements from individuals who claimed

at the scene.” involved in the crimes, and that an “‘ear witness’ place[d] an African[-]American messages between that witness and Smith demonstrated that Smith wa s two of his friends on the other.” The defendant maintained that deleted text around a dispute between [Bennett] and [Smith] on one side, and [Stewart] and testified “that the entire conflict which led t o the death of [Stewart] centered had a motive to commit the crimes. He explained that a witness had previously The defendant objected, asserting that there was evidence that Smith

nexus to the crimes charged.” because the defendant could not demonstrate “t hat such ‘bad acts’ have any must be excluded” pursuant to New Hampshire Rule of Evidence 404(b) owns weapons, has committed other crimes, or is generally a ‘scary’ person State asser ted that any evi dence that Smith “allegedly has gang affiliations, he is African - American and was a friend of co - defendant Bennett. Thus, the there was no evidence connecting Smith to the crimes other than the fact s that of the crimes and that one of the voices she heard sounded “African - American,” neighbor claimed she heard a dispute in Stewart’s apartment aroun d the time Bennett, had committed the crimes. Th e State argued that, although Stewart’s exclude evidence that Devon Smith, an African - American friend of co - defendant a third person was guilty of the crimes. Prior to trial, the State moved to The defendant argues that the trial court erred in excluding evidence that

II. Alternative Perpetrator Evidence

functional equivalent of arrest. that the officers lacked probable cause to subject the defendant to the standard. We, therefore, need not address the defendant’s furth er contention utilizing the reasonable suspicion standard rather than the probable cause the functional equivalent of an arrest, we hold that the trial court did no t err in Because we conclude on these facts that any seizure had not escalated to

approximately twenty minutes. in cluding the time the officers spoke with the defendant’s girlfriend, lasted did so, the defendant gave them a “fist - bump.” The entire “detention,” the officers what music they liked. The officers left the residence and, as they his girlfriend, the defendant again went inside and began playing music, asking to get her and the officers waited on his porch. While the officers spoke with officers asked to speak to the defendant’s girlfriend, the defendant went in side motor vehicle stop about whether he had been smoking marijuana). When t he in custody for purposes of Miranda when off icers questioned defendant during in his residence. Cf. Turmel, 150 N.H. at 384 (determining that defendant not p. 12 12

without deciding, that Rule 404(b) applies to alternative perpetrator evidence). that case); see also State v. Durgin, 165 N.H. 725, 729 (2013) (assuming, court that Rule 404(b) applied to alternative perpetrator evidence at issue in of the crimes. See State v. Roy, 167 N.H. 276, 290 (2015) (agreeing with trial offered by the defendant to show that the person was an alternative perpetrator determine the admissibility of evidence of another person’s other “bad acts” We have previously applied New Hampshi re Rule of Evidence 404(b) to

testimony described Smith as the person who stabbed Stewart.” We disagree. merely ruled that the evidence was not ‘relevant’ because none of the witness Stewart’s friend, “the trial judge failed to address the question of nexus, and and evidence that Stewart had intervened in” a dispute between Smith and faith showing that [Smith] may have been present at the time of the homicide, “evidence of an alternative perpetrator.” He contends that, despite his “good On appeal, the defendant argues that the trial court erred in exc luding

order to impeach Bennett by contradiction.” “on whether the defendant may present extrinsic evidence of the statements in extent they are inconsistent with his testimony at trial,” and reserved ruling defendant “from cross - examining Bennett with his statements to others to the were inadmissible substantively. However, the court did not preclude the them Smith was present during the homicide” were not relevant and, therefore, The court further ruled that “statements of persons who [said] Bennett told defendant had suggested gave rise to a motive for Smith to commit the crimes. regarding the incident involving Smith and a friend of Stewart, which the motion. The court ruled that t here was no admissible evidence submitted Following the hearing, the court issued an order granting the State’s

involved in the crimes. was involved in the crimes and who claimed Smith himself said that he was form of statements fro m individuals who claimed that Bennett told them Smith there was evidence of a direct connection between Smith and the crimes in the admit was not “prior bad act evidence.” Rather, the defendant asserted that countered that Rule 404(b) was inapplicable because the evidence he sought to was no evidence of a connection between Smith and the crimes. The defendant to exclude evidence that Smith was an alternative perpetrator because there argument. At the hearing, the State again urged the court to apply Rule 404(b) The court held a hearing on the State’s motion, at which it heard legal

15; U.S. CONST. amends. V, VI, XIV. as well as his right to present all favorable proofs. See N.H. CONST. pt. I, art. state and federal constitutional rights to confrontation and cross - examination between Smith and the crimes and excluding such evidence would viol ate his Thus, the defendant argued there was evidence of an “obvious connection” evidence that Smith had “confessed his involvement in the murder of” Stewart. individuals the active participation of [Smith] in the homicide” as well as p. 13 13

implicating Smith in the actual murder.” Defense counsel responded that they would not be alternative perpetrator evidence because [Bennett was] not “undermine the entire State’s theory.” The court noted that the “statements introduce the statements to “challenge [Benne tt’s] change of story” and statements Bennett made to the police and explained that he intended to homicide itself.” He suggested that these statements were different from the crimes also pl aced the defendant at the scene “participating in the actual counsel stated that Bennett’s statements placing Smith at the scene of the chief.” At the hearing on the State’s motion in limine, however, defense its discretion “in not allowing the alternative perpetrator evidence in the case in [the defendant] did the stabbing” and, thus, the court unsustainably e xercised “Smith’s presence at the time of the stabbing would make it less probable that Smith was present at the scene of the crimes. He maintains that evidence of irrelevant the statements from individuals who c laimed that Bennett told them The defendant further contends that the trial court erred in finding

Stewart. See Durgin, 165 N.H. at 730 - 31. harm Stewart’s friend, it does not establish that Smith had a motive to harm Smith was involved in a dispute with Stewart’s friend might su ggest a motive to Smith and a friend of Stewart and Stewart’s murder. Although evidence that establish the requisite connection between the alleged prior dispute involving the Rule 404(b) issue. We agree with the tr ial court that the defendant failed to We further find no error in the trial court’s analysis and conclusion as to

address the question of nexus. introduced.” Thus, we reject the defendant’s claim that the trial court failed to therefore, ruled that “at this juncture the suggested ev idence shall not be “[n]o admissible evidence was identified to support this theory.” The court, dispute, and that perhaps Stewart was killed as a result of that friendship, the defendant argued that Stewart wa s a friend of the individual involved in the especially attenuated relationship to this case.” The court found that, although that evidence of the dispute between Smith and Stewart’s friend had “an reflects that the trial court addressed the question of nexus. The court ruled Here, despite the defendant’s representation to the contrary, the record

int roduce the evidence and the person’s other bad acts. See id. clear connection, i.e., a nexus, between the purposes for which he s eeks to meet the relevance requirement of Rule 404(b), the defendant must show a when a defendant seeks to introduce evidence of an alternative pe rpetrator, to probative value of the evidence.” Id. (quotation om it ted). We explained that and if the prejudice to the defendant does not substantially outweigh the disposition, if there is clear proof that the defendant committed the other acts, relevant for a purpose oth er than to prove the defendant’s character or We noted that, in such cases, evidence of other bad acts is admissible only “if introduce evidence of other bad acts of a defendant. Durgin, 165 N.H. at 730. In Durgin, we stated that Rule 404(b) typically applies when the State seeks to p. 14 14

Mitchell, 166 N.H. 288, 296 (20 p. 14 14) (quotation omitted). “Part I, Article 15 does only the right to produc e witnesses, not to produce their testimony.” State v. right to produce all favorable proofs under Part I, Article 15 gives a defendant art. 15; see also State v. Newcomb, 140 N.H. 72, 79 (1995). However, “[t]he has the right to produce all proofs favorable to his defense. N.H. CONST. pt. I, Under Part I, Article 15 of the New Hampshire Constitution, a defendant

We disagree. matter, consistent with Part I, Article 15 of the New Hampshire Constitution.” the” stabbing, “impaired [his] ability to produce all proofs favorable in this present on the scene at the time of the stabbing, and [was] the perpetrator o f The defendant also argues that his “inability to argue that [Smith] was

679 (2002). We, therefore, decline to consider the argument on appeal. irrelevant. See id.; see also N.H. Dep’t of Corre ctions v. Butland, p. 14 147 N.H. 676, ruled that statements made by Bennett placing Smith at the crime scene were ruling or otherwise alerted the court to his view that the court erroneously does not demonstrate that the defendant sought reconsideration of the court’s appeal. See State v. Mouser, 168 N.H. 19, 27 (2015). The record on appeal had the opportunity to consider any issues asserted by the defendant on incumbent upon him to move for reconsideration. The trial court must have statements were not relevant evidence of an alternative perpetrator, it was misunderstood his arg ument and, therefore, improperly ruled that the Moreover, to the extent that the defendant believed that the trial court

request.”); cf. also State v. Goodale, p. 14 144 N.H. 224, 227 (1999). may not complain on appeal that a court has granted the appellant’s own Error § 872, at 166 (2007) (“Under the doctrine of ‘invite d error,’ an appellant hearing, the defendant cannot now complain of error. Cf. 5 C.J.S. Appeal and that the court ruled consistently with defense counsel’s representations at the statements in order to impeach Bennett b y contradiction.” In light of the fact ruling “on whether the defendant may present extrinsic evidence of the to the extent they are inconsistent with his testimony at trial,” and reserved allowed the defendant to cross - examine “Bennett with his statements to others Smith was an alternative perpetrator of the crimes. In addition, the court determined that the statements were not relevant as substantive evidence that consistent with defense counsel’s representations at the hearing, the court perpetrator, as an accomplice or coconspirator of the defen dant.” Thus, perpetrator,” but suggested, “that, if anything, Smith was an additional tend “to exonerate the defendant by establishing Smith as an alternative Subsequently, in its r uling, the court found that the statements did not

proofs on it.” determination whether [the defense] would be allowed to introduce extrinsic Bennett with the statements, “the Court would then have to make a “w ould not be alternative -- I agree.” Counsel stated that if he confronted p. 15 15

reliable and that the testimony “quali fies as a piece of circumstantial evidence, denied the motion, ruling that the methodology employed by the examiner was footwear as the source of any impression. Following a hearing, the trial court not be helpful to the jury because she was not able to positively identify the identification examiner was unreliable and that the examiner’s opinion would specified footwear. He contended that the technique employed by the footwear certain footwear impressions found at the scene could have been made by a Prior to trial, the defendant moved to exclude expert testi mony that

the error prejudiced the party’s case.” Id. (quotation omitted). party can demonstrate that the ruling was untenable or unreasonable and that (2016) (quotation omitted). We reverse its determination “only if the appealing within the sound discretion of the trial court.” State v. Dow, 168 N.H. 492, 501 The decision to admit expert testimony “rests, in the first instance,

579, 591 (1993) (quotation omitted). ergo, non - helpful.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. testimony which does not relate to any issue in the case is not relevant and, (discussing similar langu age in Federal Rule of Evidence 702). “Expert to relevance. See United States v. Ford, 481 F.3d 2 p. 15 15, 219 (3d Cir. 2007) technical, or other specialized knowledge assist the trier of fact goes primarily to dete rmine a fact in issue.” N.H. R. Ev. 702. The condition that scientific, specialized knowledge will assist the trier of fact to understand the evidence or under New Hampshire Rule of Evidence 702 “[i]f scientific, technical, or other impressions found at the scene of the crimes. Expert testimony is admissible State’s expert witness to testify that his shoes could have made footwear The defendant next argues that the trial court erred in allowing the

III. Expert Testimony on Footwear Impressions

proofs. at the scene of the crimes did not violate his right to produce all favorable conclude that the trial court’s refusal to allow evidence that Smith was present defendant did not cross - examine Bennett about such statements. Thus, we extent that they were inconsistent with his trial testimony. At trial, the preclude him from cross - examining Bennett about th o se statements to the statements to others implicating Smith as substantive evidence, it did not although the trial court did not allow the defendant to introduce Bennett’s evidence suggesting that Smith was present at the crime scene. We note that, was infringed; rather, he claims that he was unable to introduce, substantively, Here, the defendant does not contend that his right to produce witnesses

297 (1999). evidence.” Id. (quotation omitted); see also State v. Graf, 143 N.H. 294, 296, not entitle the defendant to introduce evidence in violation of the rules of p. 16 16

general knowledge of footwear comparisons, and her ability to examine the crimes. What Rice brought to the case that a lay jury could not was her at the scene of the crimes was probative of the defendant’s participation in the scene. Whether the defendant’s shoes could have made the impres sions found “significant association of class characteristics” to the impressions at the crime Here, it was highly relevant that the defendant’s shoes contained a

615 - p. 16 16 (2002). testimony.”); see also Baker Valley Lumber v. Ingers oll - Rand, 148 N.H. 609, finder to determine the weight and credibility to be accorded the expert’s the trial court finds that the expert’s methodology is reliable, it is up to the fact fact finders. See State v. Whittaker, 158 N.H. 762, 773 (2009) (“Provided that Questions about the wei ght and credibility of expert testimony are left to the United States v. Allen, 390 F.3d 944, 949 (7 th Cir. 2004) (quotation omitted). on the ultimate question to be resolved to satisfy the relevance requirement.” State v. Langill, 157 N.H. 77, 87 (2008). “[A]n expert need not have an opinion finder is presented with reliable and relevant evidence, not flawless evidence. allowed. We disagree. The overall purpose of Rule 702 is to ensure that a fact her testimony was of little assistance to the jury and should not have been not conclusively identify his shoes as the cause of the footwear imp ressions, was the defendant’s. The defendant contends that, because the expert could It is undisputed on appeal that one of the known shoes examined by Rice

“a significant a ssociation of class characteristics.” agreed that, based upon her comparisons, her conclusion was that there was shoes was that “they could have produced the” crime scene prints. She further with defense counsel that her conclusion in this case with respect to the known “assess any individual characteristics” in the crime scene prints. She a greed as well as unknown crime scene prints. She stated that she was not able to Rice testified that, in this case, she examined two different known shoes

o ther items in the same class.” “accidental, random characteristics” that can be used to separate “items from shoes as having made an impression.” “[I]ndividual characteristics” are those or more items of footwear” that can be used to “eliminate a large number of characteristics.” “[C]lass characteristics” are features th at are “shared by two relies upon what is known as “class characteristics” and “individual unknown impression. She stated that, in rendering those conclusions, she rendering a conclusion a bout whether the known footwear is the source of the an unknown footwear impression to the outsoles of known footwear and footwear comparison. She stated that footwear comparison involves comparing of the New Hampshire State Police Forensic Laboratory, testified regarding At the hearing, Emily Rice, a level II criminalist in the identific ation unit

determining who was present at the scene of the crime.” which[,] in conjunction with other evidence[,] will be of assistance to the jury in p. 17 17

DALIANIS, C.J.